Patient dumping a symptom of health system woes

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The University of Maryland Medical Center in Baltimore is under federal investigation after jolting footage of four hospital security guards dropping a patient off at a bus stop in freezing weather, wearing nothing but a hospital gown, went viral.

The 22-year-old patient with Asperger Syndrome is a victim of “patient dumping” — apractice that occurs when a hospital prematurely discharges a patient, often to bus stops, homeless shelters or other hospitals. Victims typically fall into one or more of the following categories: those with a mental health condition, undocumented or under-documented immigrants, and the homeless.

They are nearly always uninsured, and all are unable to pay for treatment — and despite the recent media attention, it is not a new phenomenon. But the scope of the problem is difficult to measure with hospitals not keeping adequate records and tepid regulatory oversight, according to a report on the issue from the U.S. Commission on Civil Rights (USCCR).

The significance of patient dumping is more an indictment of the healthcare system in general than any one incident, experts say.

“Patient dumping is more of a symptom of a broken system than the issue itself,” said John Snook, executive director of Arlington, Virginia-based mental health policy nonprofit Treatment Advocacy Center. “It’s obviously a terrible outcome, but we need to take some steps upstream before we can solve the problem.”

A brief history of patient dumping

President Harry Truman attempted to address patient dumping as early as 1946 when he signed the Hill-Burton Act. Although the act’s primary purpose was to dedicate federal funds toward the construction and modernization of hospitals, it also directed hospitals to make their services available to anyone in the “territorial area of the facility” and provide a “reasonable volume” of free care to any person unable to pay for the next 20 years. The act, however, left much gray area and went largely unenforced, leaving states to pass their own anti-dumping statutes.

By the early 1980s, only 22 states had passed anti-dumping statutes. It was later reported by lawyer Thomas L. Stricker in 1992that during that time, hospitals across the country denied medical care to a quarter million patients annually because they were either uninsured or couldn't afford payments.

The Emergency Medical Treatment and Labor Act

Following a surge of media attention, President Ronald Reagan signed The Emergency Medical Treatment and Labor Act in 1986, effectively the federal anti-dumping statute for hospitals taking part in Medicare.

“EMTALA requires that if a patient comes to the hospital, the hospital is required to perform a medical screening exam,” said Kim Stanger, partner at Holland & Hart. “If the screening exam reveals a medical emergency condition, the hospital is required to provide stabilizing treatment or an appropriate transfer to another facility, and they must do so regardless of the patient’s ability to pay.”

The civil penalties for violating the law depend on the size of the hospital and the number of beds dedicated to its emergency department.

“If a hospital has more than 100 beds, it’s about a $100,000 penalty. If the hospital has less than 100 beds, it’s around $50,000," Stanger said.

Patients, if able, can sue for damages within a two-year statute of limitations, as can hospitals that have incurred costs after treating a patient dumped on them from another hospital.

Hospitals violating EMTALA will also be investigated by state agencies that then require the facility to implement a plan of correction. If the plan isn't executed, they then stand to lose their ability to participate in Medicare.

“That’s the death knell for hospitals,” Stanger said. “It’s rare, because hospitals will correct the situation.”

UMD Medical Center president and CEO Dr. Mohan Suntha told reporters there were no excuses for what happened to the victim whose plight at a bus stop was recorded, but defended the care she received at the emergency room, saying “she received treatment and was discharged.”

Mental health cuts

The cases are in large part exacerbated by massive cuts to mental health services in recent decades. As the commission's report notes, Nevada lost nearly $80 million in the period leading up to three years where about 1,500 instances of patient dumping were orchestrated by one hospital.

The National Alliance on Mental Illness recently reported that three out of four ER doctors said they see patients who need psychiatric hospitalization at least once every shift. The majority of emergency departments — 83%, according to NAMI — don’t have a psychiatrist on call, and 29% of doctors said patients have waited more than two days in their emergency department for an inpatient psychiatric bed.

Snook blamed what he calls a “discriminatory and outdated” federal rule called the The Medicaid Institutions for Mental Diseases Exclusion, which prohibits use of federal Medicaid funds for care at an inpatient psychiatric facility. In other words, states are responsible for the brunt of the cost for anyone who goes into a psychiatric bed — which means those are often the first beds to be eliminated.

“They just cost more money,” Snook said. “You have this really small number of beds that gum up the entire system because the most severely ill folks can’t get into the treatment beds they need, so they end up in the less-intensive beds.”

That means patients experiencing a mental health episode who end up in ERs are often discharged before they’ve been properly stabilized.

Laws and ethics

Rules for hospital discharges differ from those for nursing homes, noted Samuel Brooks, a staff attorney with Community Legal Services in Philadelphia.

“While the regulations for hospitals clearly require discharge planning, they don’t explicitly state that a person can’t be dumped or discharged to the street,” he told Healthcare Dive.

Federal nursing home regulations are more clear, delineating the only reasons a patient may be transferred and grounds for why a patient should be discharged.

EMTALA mandates that if a hospital takes a patient in and a patient-physician relationship is established, physicians need to provide “appropriate care” until the relationship is terminated. Ending that relationship improperly, Stanger said, makes physicians liable to medical malpractice, specifically patient abandonment.

But physicians are not on the same page regarding how to prevent patient dumping, said Dr. Thomas Bledsoe, chairman of the Ethics, Professionalism and Human Rights Committee at the American College of Physicians.

“We’ve wrestled with that a little bit,” he told Healthcare Dive.

ACP's ethics manual considers physician-initiated termination a “serious event, especially if the patient is acutely ill.” The manual also references a physician’s “social contract with society” that mandates they deliver appropriate treatment.

Questions remain, Bledsoe said, including: “Does every individual physician have an obligation to do some charity work and dedicate part of their professional time caring for the poor, or does the profession have a responsibility? In an organization, does everyone in the organization have a responsibility or does the organization have a responsibility?”

Mental health and addiction, specifically, further complicate discussions about responsibility.

For example, if a patient comes to an ER triage desk and complains of severe abdominal pain due to withdrawal, Bledsoe said the ER isn't “necessarily obliged to treat that” because a patient-physician relationship hasn't been established yet. If the patient is admitted and the relationship is established, disagreements about proper treatment can provide cause for termination.

“Sometimes patient values and physician values are divergent enough that, what you’re asking for you either don’t feel like you can or shouldn't offer, and that’s a difficult situation,” Bledsoe said. And while most organizations put policies and procedures in place to provide guidance in those situations, there’s always room for professional discretion.

Treating patients to the best of a physician’s ability can sometimes end at an impasse in how treatment should be delivered.

“Do you just punish people so much that they can’t help but follow the law, or do you say ‘These are medical professionals. These are people who have dedicated their lives to helping people. How is it so bad that they’re letting these things happen?’” he said. “How are we possibly in this situation, and what do we need to do to get mental health care in the first place?”

Ideas for change

The USCCR examination of EMTALA enforcement yielded five conclusions: hospitals aren't keeping adequate data on the patients they dump; there is insufficient regulatory oversight; non-punitive measures to obtaining this information should be enforced; hospitals don’t have sufficient funds to comply; and hospital staff need more training and education.

UMD Medical Center said “new procedures have been instituted and staff has been trained” in advance of the federal investigation CMS authorizedlast month.

Most corrective measures taken by hospitals caught dumping patients have been similarly reactionary. Snook said some local health systems that have taken steps to get ahead of patient dumping by building robust psychiatric emergency units.

“You don’t have to be in the emergency room with the person who came in after a car crash and the person having a heart attack,” Snook said. “They’re able to get the right levels of information and get that person the right sort of care.”